General Terms and Conditions

Setting the scene

1. The following terms and conditions apply to all services and platforms (services, or platform) provided by Flare HR Pty Ltd (Flare, or us or our) and set out the rights and obligations that together we agree will apply.
2. We agree to provide the services specified in the order form. In certain instances, we may subcontract some or all of the services to our related entities or third party service providers. Where we subcontract these services, we will be liable for the acts or omission of our subcontractors and ensure that the agreements we have in place with our subcontractors contain terms that are no less onerous than our obligations under this agreement, including confidentiality and privacy obligations.

The things we need from you

3. Without limiting any other obligation you have under this agreement, you must:
   a) provide us with all information and assistance reasonably required by us to perform our obligations under this agreement;
   b) support the completion of due diligence we may reasonably require (for example, to comply with obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth));
   c) provide employee details relevant to this agreement;
   d) notify us promptly via the platform when any employee gives notice, is terminated or otherwise ends their employment (and, in any event, within 5 business days if the employee has entered into a salary packaging arrangement);
   e) as between us, retain responsibility for any fraud or wilful misconduct of any of your employees that relates to the platform or receipt of the services;
   f) not promote, market, or publish statements about our platform or our services without our
   prior consent;
   g) not use any device, program, code, virus, Trojan horse, or other surreptitious instruction to attempt to interfere with or otherwise alter the working or functionality of the platform or Flare’s (or our related entities’) intellectual property; and
   H) not unreasonably refuse or delay any action reasonably required for us to perform the services.

Payment that we will receive

4. If any fees apply to your use of the platform or the services, you must pay the fees at the time and in the manner specified in the order form.
5. If you fail to make any payment by the due date specified in an invoice, without prejudice to any other right or remedy, we may suspend the provision of any services until such failure is remedied.
6. Unless otherwise stated, all amounts are stated on a GST exclusive basis. If GST is payable in relation to any goods or services supplied by us, an amount of 10% (or such other rate as prescribed by the GST law) will be added to the GST exclusive supply price and is payable by you at the time our invoice is given to you.
7. After the end of the initial minimum term, we may change the amount of any fee you are required to pay us, or introduce a new fee, by giving you at least 30 days’ prior written notice. If we give you notice of changes to fees, you may terminate this agreement before the changes take effect, by giving us written notice.
8. Products and services advertised on the platform which are purchased from third parties are subject to terms and conditions and requirements imposed by third party service providers. For example, financial services are subject to a Financial Service Guide and Product Disclosure Statement, and may be subject to KYC. Your employees must determine whether products and services (including any
   financial services) are suitable and appropriate to meet their needs.
9. You acknowledge and agree that we (and/or our related entities) may receive payments or commissions from third parties in relation to products and services made available via, or in connection with, the platform.

We may need to interact with your employees

10. If you are an employer whose employees use the Flare platform, you must co-operate with our reasonable requests from time to time in relation to their use of the platform. This may include doing things we reasonably require to ensure that employees are provided with relevant information (including marketing information), or restricting or excluding specific employees from accessing the
    platform.

Beginning and ending our relationship together

11. The Initial Minimum Term will commence on the Start Date specified in the Order Form. We will start providing the services after the Start Date, as soon as we are reasonably satisfied that you are appropriately onboarded. Following the expiry of the Initial Minimum Term, the services will be provided on a rolling monthly basis.
12. Where third parties are involved in the supply of the services, there may be some additional requirements from those third parties that you will need to comply with.
13. Either of us may terminate this agreement by written notice:
    (a) after the expiry of the Initial Minimum Term, without cause on no less than 30 days’ written notice;
    (b) for a material breach that cannot be remedied, or if capable of remedy, a material breach that is not remedied within 14 days of receiving written notice requiring the material breach to be remedied;
    (c) for bankruptcy or insolvency event; or
    (d) for ceasing, or indicating an intention to imminently cease, carrying on business.
14. Upon notice of termination of this agreement, we will immediately cease to provide the services but we will use our reasonable endeavours to effect an orderly transfer of our obligations under this agreement to one or more person(s) designated by you to undertake requirements identical or similar to the services.
15. You may extract your employee data using the tools available on the platform within 30 days of termination of this agreement, for no additional cost.
16. All provisions of this agreement that are intended to survive (including those relating toconfidentiality, privacy, intellectual property rights and liability) will continue to survive expiration or termination (for whatever reason).

Our liability if things go wrong

17. Our liability to you for any non-compliance with a statutory guarantee or loss or claim arising out of or in connection with this agreement and the services or platform is limited (at our discretion) to:

• 1. the re-supply of the services; or
  2. the cost of re-supplying the services.

This agreement does not exclude, restrict or modify the application of any part of the Australian Consumer Law, or the exercise of any right or remedy conferred by the Australian Consumer Law. Our services come with guarantees that cannot be excluded under the Australian Consumer Law.

For major failures with the service, you are entitled:

• • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

18. In no event will either party be liable for any indirect loss or loss which is consequential, special, punitive, exemplary or incidental, including loss of reputation, loss of goodwill, lost profits, lost revenue, loss of opportunities, loss or use or loss of or damage to data.
19. To the extent permitted by law, the maximum aggregate liability of a party arising out of or in connection with this agreement and the services or platform, whether in contract (including by way of any indemnity), warranty, tort (including negligence), statutory duty, non-fraudulent misrepresentation, equity or otherwise, for any event or series of events, is limited to the amount of $500,000.
20. Each party’s liability under this agreement, any applicable order form and the services or platform (including under any indemnity) is reduced proportionately to the extent that such liability is caused or contributed to by:
    
    1. the breach of this agreement or the applicable order form; or
    2. the wrongful, unlawful or negligent act or omission of the other party or its directors, officers, employees and/or agents.
21. Each party must use all reasonable endeavours to mitigate its losses.
22. Our platform or services may contain links to third party websites, services or advertisements for third parties. Unless expressly stated otherwise, we do not endorse and are not responsible for any such third party content and have no control over or rights in such third party content.

Resolving any disputes or differences as they may arise

23. If any dispute or difference arises in connection with this agreement or the platform, then each party will refer it to senior management, who will use their best endeavours to resolve it before initiating any court proceedings.
24. If senior management cannot resolve a dispute within 14 days, each of us must, in good faith and acting reasonably, use best endeavours to resolve it by participating in a mediation with an independent mediator. If we cannot promptly jointly agree on a mediator, then the mediator will be
    appointed by the President of the Law Society of New South Wales. We must mediate the dispute or difference in accordance with principles agreed between us or, if no agreement can be promptly reached, the principles determined by the mediator. Unless we agree otherwise, the mediator’s fee and any other costs of the mediation itself (such as for venue hire or refreshments) will be shared equally between us, but each party will each pay their own costs of preparing for and participating in the mediation (such as for travel and legal representation).
25. If the mediation is not successful in resolving the dispute, the parties shall be entitled to refer the dispute to an appropriate Court or Tribunal in New South Wales.
26. Nothing in this agreement prevents a party from seeking urgent interlocutory relief. Notifying each other of important things
27. Any notice, consent, information, application or request that may be given to a party under this agreement is only given if it is in writing and delivered or posted to that party at its notified address or emailed to that party at its notified email address.

Our intellectual property

28. You acknowledge and agree that all existing and future intellectual property rights in the platform are owned by Flare (and vest in, and are assigned to, Flare on creation) (Flare IP). Nothing in this agreement is intended to transfer intellectual property rights of any kind to you. We may require you to execute any documents and do anything reasonably required to give effect to this clause. You
    must only use, reproduce, modify, publish and adapt the Flare IP with our prior written consent.
29. During the term of this agreement, Flare grants you an Australia-wide, non-transferable, non- exclusive, royalty-free licence to use the Flare IP solely for the purposes of using the platform, and exercising your rights and performing your obligations under this agreement. You must comply (and ensure your employees comply) with all reasonable directions given by Flare in relation to the Flare
    IP.
30. We must not infringe the intellectual property rights of any third party in connection with providing the services or the platform and we indemnify you against any loss that you may suffer or incur as a direct result of our breach of the intellectual property rights of a third party.

Keeping information confidential

31. Subject to clause 32, each party must:
    (a) keep the other party’s confidential information confidential;
    (b) not use, disclose or reproduce the other party’s confidential information for any purpose other than the purposes of this agreement; and
    (c) store the other party’s confidential information in a safe place and implement adequate security measures to safeguard it from unauthorised access, use, disclosure or reproduction.
32. The obligations in clause 31 do not apply if:
    (a) a party has agreed in writing to the specific disclosure, use or copying of its confidential information;
    (b) disclosure of specific confidential information is required to comply with any applicable law, court order or the rules of a recognised stock exchange;
    (c) disclosure is necessary to obtain professional advice in relation to matters arising under or in connection with this agreement; or
    (d) in the case of Flare, disclosure is made to its related entities or third party service providers for the purpose of providing the services; provided that such parties are bound by confidentiality and privacy obligations that are no less onerous than Flare’s obligations under this agreement.
33. To the extent permitted by law, a party must immediately notify another party if it is lawfully obliged to disclose any confidential information of that other party to a third party and must comply with the other party’s lawful directions in relation to the disclosure.
34. For the purposes of this agreement, confidential information:
    (a) includes all information in whatever form (including, without limitation, verbal information, or information recorded on paper or by electronic means) disclosed by one party to the other which relates to that party, the platform or this agreement which that party indicates, or which by its nature, is confidential; and
    (b) excludes information which is already in the possession of that party or which becomes known or generally available to the public; except if this happens because of a breach of this agreement (in which case it remains confidential information).

We take privacy and employee data protection very seriously

35. Each party must comply with the Privacy Act 1988 (Cth), Spam Act 2003 (Cth) and any other applicable laws that affect privacy or personal information (Privacy Laws) in respect of any personal information that:
    (a) one party discloses to the other party; or
    (b) comes into the possession or control of a party by any means, including through the platform.
36. Without limiting its obligations under clause 35, each party must ensure that it has obtained any necessary consents to collect or disclose personal information in accordance with this agreement.
37. Each party must promptly inform the other party in writing of any Eligible Data Breach (as that term is defined in the Privacy Act 1988 (Cth)) in respect of personal information disclosed to it by the other party.

Special conditions

38. We may agree to special conditions in the order form or otherwise with you in writing. If such special conditions are agreed, then they will prevail to the extent of any inconsistency with another term of this agreement.

Additional boilerplate provisions our lawyers like us to include

39. Each party must pay its own costs in relation to preparing, negotiating and executing this agreement and any document related to this agreement.
40. This agreement and the associated order form contain everything the parties have agreed in relation to the matters they deal with. No party can rely on an earlier agreement or order form, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this agreement was executed, except as permitted by law.
41. The relationship between the parties is that of principal and independent contractor. No party is an agent, representative or partner of any other party, except to the extent specified in this agreement. No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.
42. If a clause or part of a clause of this agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.
43. Either party may assign, novate or otherwise transfer its rights and/or obligations under this agreement to any of its related bodies corporate, or to any entity that acquires all or substantially all of its business or assets, provided that it gives the other party written notice of any such assignment, novation or transfer.
44. We may amend this agreement at any time by providing 30 days’ prior written notice to you. If you do not agree with the amendments, you may terminate this agreement by giving 30 days’ written notice or such lesser period as we agree in writing and in the notice period the amendments will not have effect.
45. A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it. A waiver only affects the particular obligation or breach for which it is given. It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement, does not amount to a waiver.
46. Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this agreement and all transactions incidental to it.
47. This agreement is governed by the law of New South Wales. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.

Additional terms that only apply to salary packaging (including novated leases for eligible motor vehicles)

48. If your employees elect to enter into salary packaging arrangement(s), they must execute:
    (i) a legally binding agreement with the relevant third party provider; and
    (ii) a legally binding novation agreement with you and the relevant third party provider.
49. We will issue invoices to you for employee salary deductions on or after the last day of a given calendar month, and you must pay such amounts to us within 14 days of receipt of an invoice.
50. We will hold funds received from you in respect of employee salary packaging arrangements on trust for the benefit of the relevant employee. We will only use such funds to pay, deduct or otherwise settled approve expenses related to the employee’s salary packaging arrangement. Amounts paid by you in respect of one salary packaging arrangement will not be offset against or cross-subsidise
    amounts due in respect of another salary packaging arrangement.
51. Without limiting your obligations under clause 3(d), you must notify us promptly and, in any event, within 5 Business Days, if your employees who have entered into salary packaging arrangement(s) resign or have their employment terminated for any reason.
52. Without limiting your obligations under clause 3(d), you must notify us promptly if your employees who have entered into salary packaging arrangement(s):
    (i) experience a reduction in total annual salary;
    (ii) change their pattern of employment; or
    (iii) take unpaid or part-paid leave for a period of 4 weeks or more.
53. If you provide us with notice that an employee has resigned or has had their employment terminated and they participate in a salary packaging arrangement, we will provide you with a statement setting out the employee’s salary packaging account balance and:
    (i) where there is a negative balance, we will notify you of any final deduction amount from the final payroll; or
    (ii) where there is a positive balance, we will return to you for payroll processing any surplus funds remaining after settlement of all liabilities relating to the salary packaging arrangement.